51 S.W. 473 (Mo. 1899), Hogan v. Citizens' Railway Company

Citation:51 S.W. 473, 150 Mo. 36
Opinion Judge:MARSHALL, J.
Party Name:Hogan et al., Appellants, v. Citizens' Railway Company
Attorney:Chas. W. Bates, Chas. P. Johnson and Virgil Rule for appellants. Smith P. Galt for respondent.
Case Date:May 23, 1899
Court:Supreme Court of Missouri

Page 473

51 S.W. 473 (Mo. 1899)

150 Mo. 36

Hogan et al., Appellants,

v.

Citizens' Railway Company

Supreme Court of Missouri, First Division

May 23, 1899

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow, Judge.

Affirmed.

Chas. W. Bates, Chas. P. Johnson and Virgil Rule for appellants.

(1) Plaintiff may charge in one count as many acts of negligence on the part of the defendant as he alleges caused the injury; and the lower court erred in striking from the petition the allegation that defendant was negligent in not providing the grip car with a fender. This error was repeated in the last instruction given on behalf of defendant. Hill v. Railroad, 49 Mo.App. 534, s. c. 121 Mo. 477; Senn v. Railroad, 135 Mo. 519; Seiter v. Bischoff, 63 Mo.App. 157; Elliott on Railroads, sec. 1157. (2) Where plaintiff has not offered in evidence for the purpose of contradicting defendant's witness any part of his testimony given on a former occasion, nor even identified the same, it is not proper to allow defendant to read the whole of such testimony regardless of the relevancy, and without any proof that the paper read from was a transcript of the testimony of such witness. Berthold v. O'Hara, 121 Mo. 97; State v. Fairlamb, 121 Mo. 153. (3) It is error to permit a witness, over objection, to answer a question calling for a conclusion which it is for the jury to decide in the case from the facts in evidence; and the objection of plaintiff to the gripman's answering the question, after he had related the facts of the happenings of the injury, if there was anything else he could have done which he did not do, should have been sustained. King v. Railroad, 98 Mo. 240; Hunt v. Railroad, 94 Mo. 260. (4) Independent of ordinance or statute, it is the duty of the gripman, in charge of cars operated on a public street, to be on the lookout for persons on the street, and to take all reasonable measures to avoid injuring persons who may be on the street. Winters v. Railroad, 99 Mo. 517; Senn v. Railroad, 108 Mo. 152; Reilly v. Railroad, 94 Mo. 609. (5) Whether the gripman exercised reasonable care under all the circumstances was a question of fact for the jury. Stanley v. Railroad, 114 Mo. 619. (6) It was for the jury to find from the facts in evidence whether, under all the circumstances, defendant was negligent in running the cars at the speed it did run them just before and at the time of the accident, and not for the court to declare that it was not negligent to run at the rate of six miles an hour. Railroad v. St. L. Union Stock Yards, 120 Mo. 558; Stepp v. Railroad, 85 Mo. 234. (7) It was error for the court to declare that "the jury must not impute any negligence to the gripman because he did not stop or try to stop, or was not running slowly before the rush of the crowd occurred," because it was for the jury to find from the evidence in the case whether under all the circumstances there was such an appearance of danger before the crowd rushed as to require the gripman in the exercise of duty to run slowly. (8) Whether it was negligence in the gripman to fail to ring his bell or give warning of the approach of the car after giving the usual signal before reaching a street, although no statute or ordinance so requires is a question of fact depending on the evidence, and it is error for the court to declare, as a matter of law, that such failure in this particular case was not negligence. Burger v. Railroad, 112 Mo. 246; Hodges v. Railroad, 71 Mo. 50; Loyd v. Railroad, 128 Mo. 595. (9) If, notwithstanding contributory negligence of plaintiff or deceased, defendant could have by the exercise of ordinary care avoided the injury, then defendant is liable. The court erred in refusing the instruction on this point prayed by plaintiff. Fiedler v. Railroad, 107 Mo. 652; Loyd v. Railroad, 128 Mo. 608; Czezewzka v. Railroad, 121 Mo. 214; Rosenkranz v. Railroad, 108 Mo. 13.

Smith P. Galt for respondent.

(1) The court did not err in striking from the petition the allegation, to wit: "And defendant did negligently fail to use ordinary care in providing said grip car with a fender to prevent its running over the children it had run down and upon." Taking it as appellants probably intended it, it is an immaterial and irrelevant allegation, unless it would further appear that such fenders were at the time of the accident in use in the city of St. Louis, or were required by city ordinances or the law of the State. It does not lie in the mouths of the plaintiffs or their counsel to imagine additional appliances, which defendant might have had, and make that a basis of recovery. (2) The court did not err in permitting defendant to read in evidence the whole of the conductor's testimony at the coroner's inquest, as part of its questions and answers had been read to the jury and he was examined thereon by appellants, for the purpose of contradicting his evidence at the trial. Wilkerson v. Eilers, 114 Mo. 245; State v. Talbott, 73 Mo. 258; Prewitt v. Martin, 59 Mo. 325; 1 Greenl. on Evid., sec. 462; Romertze v. Bank, 49 N.Y. 577. (3) The question asked the motorman did not call for a conclusion, as appellants urge, but for a fact. The jury might imagine, or counsel for appellants in argument might urge, there was something else besides what the motorman had testified to, that he had done to stop the car, that he might have done, and therefore, though the defendant might not be required to prove a negative and ran some risk in attempting it, the inquiry was proper. The witness was an expert, and the law presumes he would tell the truth.

OPINION

[150 Mo. 40] MARSHALL, J.

Damages for death of plaintiff's child.

The plaintiffs as the father and mother of Floyd B. Hogan, sue the defendant, a corporation, operating a cable street railway in St. Louis, under section 4425, R. S. 1889, to recover five thousand dollars for the death of their minor child, a minor seven years of age, which occurred on the 5th of June, 1893, at the corner of Twelfth and Morgan streets, by being run over by one of defendant's trains of cars, which was composed of a grip car and a trailer.

The petition charges four acts of negligence by defendant: 1st, Running the cars at a greater rate of speed than is allowed under the city ordinances; 2d, Failure of the conductor and motorman to keep a vigilant watch for all persons on foot, especially children, either on the track or moving toward it, and after the gripman and conductor saw or by keeping a vigilant watch for children might have seen their child, failure to stop the train of cars in the shortest time and space possible, as the city ordinance

Page 474

requires; 3d, Failure "to ring the bell or give any signal or sufficient warning of the approach of the cars," although running in a thickly settled part of the city where the street was being constantly crossed by women and children and the public generally, and 4th, Failure "to use ordinary care in providing said grip car with a fender to prevent its running over the children it had run down and upon."

On motion the court struck out the fourth act of negligence pleaded, and the plaintiffs saved an exception to the ruling.

The answer admitted the incorporation and business of the defendant, and that the deceased came to his death from injuries received "by one of defendant's cars," but denied generally the other allegations of the petition. Contributory negligence by the deceased and by his parents, the plaintiffs, was [150 Mo. 41] affirmatively averred by the defendant. A proper reply was filed.

The trial developed the facts following:

Plaintiffs offered in evidence ordinance No. 13,896, which ordinance gives the defendant the right to operate its line of railroad by cable, and providing by section 6 as follows: "The City of St. Louis reserves the right to regulate the running of cars, and the rate of speed at which cars shall be run on said railroad." Ordinance No. 14,600, offered in evidence by plaintiffs, provides that defendant may run its cars on Morgan street from Garrison avenue to Fourth street at a rate of speed not exceeding eight and one-half miles an hour.

Plaintiff also offered in evidence Ordinance 17,188 which ordinance, so far as material to this case, is as follows:

"An ordinance in revision of the ordinances of the City of St. Louis, and to establish new ordinance provisions for the government of said city.

"Sec. 1274. Every person, corporation, company or copartnership engaged in the business of transporting...

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